NOTE: The document you are viewing is an HTML facsimile
of OSWER Directive 9650.15 that has been reformatted for the
Internet. This version maintains as much as possible of the
original document integrity. Only a couple of non-essential
elements are missing, namely facsimiles of the OSWER Directive
cover page, and EPA Form 1315-17 (the Directive Initiation
Request). Also, the original typed document had the directive
number as a header on each page—in this version the directive
number appears at the beginning of each new section.

The policies and procedures set out in this document are intended
solely for the guidance of Government personnel. They are not
intended, nor can they be relied upon, to create any rights,
substantive or procedural, enforceable by any party in litigation
with the United States. The Agency reserves the right to act at
variance with these policies and procedures and to change them at
any time without public notice.

I. Background

Codification is the process that identifies the elements of
approved State programs by placing them in the Code of Federal
Regulations (CFR). The codification of State programs is designed
to enhance the public's ability to discern the current status of
the approved State program and alert the public to the specific
State regulations that the Federal government can enforce if
necessary. This process will be particularly helpful as States
adopt additional Federal requirements or revise their approved UST
programs.

Appropriate provisions of state statutes and regulations are
"incorporated by reference." Other elements of the approved state
program, such as the Attorney General's Statement, Memorandum of
Agreement, Program Description, and Demonstration of Procedures for
Adequate Enforcement are merely "referenced". These documents are
referenced by listing the title and date of signature in the
codification notice. It is important to understand that while the
state program itself is being codified through publication in the
CFR, it is the process of incorporation by reference of applicable
statutory and regulatory elements that makes the state requirements
the federal law as well.

The effect of incorporation by reference is that the
incorporated material has the same legal effect as if it were
published in full in the CFR. State enforcement authorities
contained in statutes and regulations are identified in the
codification rule but not incorporated by reference since EPA uses
its own authorities to enforce approved State requirements.

EPA enforces State regulations that are more stringent than the
Federal requirements, but not those that are broader in scope. For
example, EPA will enforce State regulations that require reporting
of all suspected releases, even though Federal regulations require
only that releases of greater than 25 gallons be reported. However,
EPA cannot enforce State regulations against farm tanks excluded
from regulations at the Federal level. Therefore, the codification
rule, which is published in the Federal Register, must identify
where the State is broader in scope so that the public as well as
the regulated community can know that the Federal government will
not be enforcing those broader in scope program requirements.

A. Authorization Generally

Subtitle I of the Resource Conservation and Recovery Act (RCRA)
establishes a system which ensures the proper use and handling of
underground storage tanks (USTs). To do this, RCRA establishes a
partnership between the federal government and the states. Section
9004(d)(2) of RCRA provides, in part, that:

[once a State has submitted its
program], [i]f the Administrator determines that [the] State
program complies with the provisions of this section and provides
for adequate enforce- ment of compliance with the requirements and
standards adopted pursuant to this section, he shall approve the
State program in lieu of the Federal program and the State shall
have primary enforcement responsibility with respect to
requirements of its program. [Emphasis added]

The effect of this provision is to allow the states to seek
authorization to enact and administer state laws and regulations in
place of the federal regulatory program found at 40 C.F.R. Part
280. However, the state program must be no less stringent than the
federal program and it must provide for adequate enforcement. Once
a state is authorized for Subtitle I, the state regulations provide
the substantive requirements that must be met at facilities located
within the state. When the state becomes authorized, the federal
UST regulations are no longer applicable in that state. As in
states authorized under Subtitle C of RCRA, both the federal
government and the state exercise enforcement authority.

B. State Regulations Which Are More Stringent or Broader
in Scope Than Their Federal Counterparts

As mentioned above, Section 9004(b)(1) does not allow approval
for a state whose laws are less stringent than the federal
requirements. However, states may enact laws more stringent than
their federal counterparts. Section 9008 of RCRA. In addition,
states may enact laws broader in scope than their federal
counterparts; that is, the state laws have no counterpart in the
federal UST program. This authority is specifically codified in 40
C.F.R. § 281.12(a)(3).

State program requirements that are broader in scope of coverage
than the federal program are not a part of the federally-approved
program, 40 C.F.R. § 281.12(a)(3)(ii). Since that portion of the
state program does not have a counterpart in the federal program,
it does not become a requirement of Subtitle I, the violation of
which EPA is entitled to enforce pursuant to Section 9006(a).
Therefore, EPA may not enforce that portion of a state program
which is broader in scope of coverage than a federal program.
Examples of regulations which are broader in scope than the federal
program include: the regulation of tanks storing heating oil for
consumptive use on the premises where stored; the regulation of
flow-through process tanks; and the regulation of farm or
residential tanks of 1,100 gallons or less capacity storing motor
fuel for non-commercial purposes. Consequently, EPA will not
incorporate by reference states laws which are broader in scope
than the federal program.

While state provision which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more stringent state provisions is usually
covered in similar provisions of the federal program. Examples or
more stringent state provisions would include: a requirement that
not only must tanks be protected from corrosion, but that tanks
must be made solely of corrosion proof materials; that notice of
use of a new tank system must be made within 15 days instead of the
30 days allowed by the federal program; or that owners or operators
of petroleum USTs demonstrate pre-occurrence financial
responsibility of at least $2 million instead of the $1 million or
$500,000.00 required by the federal program.

Provisions in state programs which are more stringent than their
federal counterparts are, nevertheless, a part of the approved
state program, and are enforceable by EPA. Congress intended this
result when, in Section 9008, it specifically permitted more
stringent regulations, and, at the same time, authorized EPA to
enforce those provisions under Section 900(a)(2). Thus, more
stringent state provisions in an approved program are, unlike those
which have no counterpart in the federal program, a part of the
requirements of Subtitle I, which EPA is required to enforce.
Consequently, EPA will incorporate by reference these laws which
are more stringent than the federal program.

C. State Enforcement Authorities

State enforcement authorities do not become part of the
authorized state program that EPA can enforce. Congress provided
EPA with the necessary authority to use federal procedures for
enforcement of all applicable UST rules and regulations, and it
intended that those procedures be used in the event of federal
enforcement of a state's UST laws. For example, Section 9006(a)(1)
of RCRA authorizes the Administrator, in the event of a violation
of any requirement of Subtitle I, to issue an order requiring
compliance immediately or within a specified time. Section
9006(a)(2) makes it clear that such orders may be issued in states
which are authorized to carry out the UST program under Section
9004 (after notice to the affected state); and Section 9006(a)(3)
provides for a penalty for non-compliance. Provisions for public
hearings on any order issued subpoenas are also included in Section
9006(b). Section 9006(c) specifies the scope and content of the
compliance orders which may be issued under this Section.

Congress provided a specific mechanism for federal
administrative enforcement proceedings, to be used in cases of
federal enforcement of state programs in lieu of any administrative
procedures contained in the laws and regulations of the state in
which the violation occurred. Thus, EPA will not incorporate by
reference state enforcement authorities.

D. Why Codify?

The question has arisen as to why EPA must publish state
programs authorized pursuant to Section 9004 of RCRA, 42 U.S.C. §
6991c(d)(2), in the Code of Federal Regulations.

Codification is one of two necessary components for final
approval of an authorized state UST program. Authorization, the
first step, provides the necessary EPA review and approval.
Codification, the second step, incorporates state law into the
federal scheme, thus supplanting the federal program for that
state. The authorized program then becomes the only program
enforceable by either the state or the federal government as it
applies to regulated entities. This interpretation is supported by
the language of section 9006(a) of RCRA, 42 U.S.C. § 6991e(a) which
state,

. . . whenever . . . the
Administrator determines that any person is in violation of any
requirement of this subchapter, the Administrator may issue an
order requiring compliance within a reasonable specified time
period or the Administrator may commence a civil action in the
Unites States district court in which the violation occurred . .
.

The key phrase is "of this subchapter". In order to become
requirements of this subchapter, the authorized state UST program
requirements must be made federal requirements.

Codification also serves to place regulated entities and members
of the public on notice of the requirements pertaining to the
operation of USTs. Under the Administrative Procedure Act (APA),
each agency must make available to the public certain
information.

Each agency shall separately state
and currently publish in the Federal Register for the guidance of
the public . . .

(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted by
the agency; and,

(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be required to
resort to, or be adversely affected by, a matter required to be
published in the Federal Register and not so published. For the
purpose of this paragraph, matter reasonable available to the class
of persons affected thereby is deemed published in the Federal
Register when incorporated by reference therein with the approval
of the Director of the Federal Register.

5 U.S.C. § 552(a). The regulations on how to incorporate by
reference appear at 1 C.F.R. Part 51.

Therefore for the Federal government to be able to enforce the
provisions of state laws and regulations that have been approved to
operate in lieu of the federal program, those requirements either
have to be published in the Federal Register or incorporated by
reference therein. Only the substantive rules must be published or
incorporated by reference, because the federal government uses its
own enforcement authorities when bringing actions for alleged
violations of the authorized state UST program. Thus, general
enabling statutes that do not embody specific requirements that
whirl become enforceable by the federal government pursuant to
section 9006 of RCRA need not be incorporated by reference,
although they are, of course, part of the approved state
program.

Part 282 has been reserved for codification of approved State
UST programs (see Appendix A). Appendix F to this guidance contains
a list of the sections within Part 282 that have been specifically
reserved for each of the 56 States and Territories. The Regions
should use this list to identify the sections of Part 282 that
should be included in their codification rules.

II. Steps in the Codification Process

The major effort will be to write the Federal Register rule
signifying the codification of the state program. (As part of this
effort each Region should set up a docket, with a new file and
docket number, for all codification materials and any public
comments.) OUST Headquarters has developed a model codification
rule and will provide it to the Regions electronically to
facilitate the codification process (see Appendix B).

The U.S. Government Printing Office (GPO) offers a 20 percent
discount for Federal Register documents submitted with a disk.
Regions should therefore explore the possibility of submitting
their rules on disk. There are a number of requirements, however,
that must be met when submitting electronic files for publication
in the Federal Register (see Appendix C).

As part of producing the codification notice, the Regions will
need to review the State program approval application in order to
determine what state materials are to be incorporated by reference
(i.e., relevant portions of state statutes and regulations). These
need to be clearly identified in the notice and placed into binders
for public review.

After determining what materials are needed for incorporation
by reference, the Region will need to ensure that it has legally
enforceable copies of all relevant materials so they may assemble
the binders. Two binders are required. One binder will contain
statutory provisions; another will contain regulatory provisions.
The statutes and regulations must be of proper quality to meet OFR
standards (see sample binders in Appendix G).

A letter from EPA to OFR requesting the incorporation by
reference must be submitted at least 20 working days in advance of
the desired publication date (see Appendix E). The letter should be
accompanied by the binders, the Federal Register rule, and note the
section(s) of the CFR into which the materials will be
incorporated. This letter also must include the name and phone
number of the Regional codification contact.

A transmittal memo to Vickie Reed, Headquarters Federal
Register liaison, must be prepared, as must a Federal Register
typesetting request form.

The entire package must then be submitted for review to the
Quality Assurance Officer at OPPE. Send the package c/o Vickie Reed
(mail code 2136).

The Quality Assurance Officer assesses the materials to
determine whether the documents submitted meet all applicable OFR
criteria. As part of this process, the table of contents will be
checked against the materials in the binder and the listing to the
appendix in the Federal Register rule.

If the materials meet the criteria, all materials (transmittal
letters, binders, the rule, other forms, etc.) are submitted to OFR
through the Headquarters Federal Register liaison. If the materials
do not meet the criteria, any needed changes will be specified and
the materials will be returned to the Region for corrections.

OFR will publish a codification rule specifying the state
statutory and regulatory provisions that have been incorporated by
reference.

Copies of all incorporation by reference materials must be made
available for public review at a number of locations following
publication in the Federal Register, including the state office,
the Regional library, the OUST docket, and OUST. OFR will also
retain a copy of the materials.

See Appendix D for additional guidance on the
procedures involved in preparing and submitting Federal Register
notices.

III. Legally Enforceable Statutes and Regulations

It is EPA's burden to ensure that the copies of statutes and
regulations submitted for incorporation by reference are the
legally enforceable copies in the state. The question of which
version is enforceable and when it is effective is to be determined
with reference to state law. There are three categories of legally
enforceable regulations:

Regulations that are published in the state register. These
regulations are not effective until they are published in the state
register.

Regulations that are immediately effective upon adoption and
Signature by the Secretary of State. There regulations have either
an official stamp denoting the date of adoption and signature or
some other form of certification that the material was adopted by
the state. This certification also needs to be included in the
binder of incorporated by reference materials.

Regulations that are immediately effective (as above), except
that the state Periodically publishes a compilation of their
regulations. The official version in such states is the originally
adopted version signed by the Secretary of State.

Because states may submit different categories of applicable
regulations to EPA, the Regions will need to check with their
states in determining which is the legally enforceable copy.

In addition, the Region must obtain legally enforceable versions
of state statutes. This version may be either an officially signed
version or one published in the state code; the Region will need to
confirm with the state which is the legally enforceable copy.

An electronic copy of state statutes and regulations is not a
valid format for incorporation by reference materials submitted to
OFR, because it lacks certification that the materials have been
officially adopted by the state. The same holds true for secondary
sources such as the Bureau of National Affairs (BNA) publication
Environment Reporter. Additionally, documents being
submitted for approval should not be combined from different
sources or from volumes of different dates.

Regions codifying states that have incorporated the federal UST
regulations by reference would follow the procedures outlined above
when incorporating by reference the applicable state provisions,
provided that the state has devised an internal numbering system
for those regulations that distinguishes them from the federal
regulations. They would simply need to cite the appropriate
sections of the state regulations for incorporation by
reference.

There may be cases where an approved state has included
statutory and/or regulatory provisions in its application for
program approval that are not UST-specific but instead supplement
the UST provisions. In such cases, particularly if the provisions
are not cited in the Attorney General's statement as authorities
upon which the UST program relies, it is appropriate to reference
them in the codification notice. However, these provisions should
not be incorporated by reference. Only those provisions that are
applied to a specific aspect of the UST program may need to be
incorporated by reference.

IV. Quality Guidelines for Incorporation by Reference of State
Statutes and Regulations

The Office of the Federal Register imposes a number of requirements
and prerequisites for incorporating materials by reference in
published Agency regulations. Incorporation by reference is a
mechanism that permits more efficient use of resources by reducing
the volume of material published in the Federal Register and Code
of Federal Regulations. Incorporation by reference allows Federal
agencies to comply with the requirement to publish regulations in
the Federal Register by referring to materials already published
elsewhere. The legal effect of incorporation by reference is that
the material is treated as if it were published in the Federal
Register. This material, like any other properly issued regulation,
has the force and effect of law.

The Director of the Federal Register is authorized to decide
when an agency may incorporate material by reference. The Director
may approve an incorporation by reference if the material meets the
requirements of 1 CFR Part 51. OFR has had concerns regarding the
format, quality, condition, and EPA's location of materials to be
incorporated by reference. Central to OFR's concerns was the
availability of legible materials for public review. Before January
3, 1994, no approved State UST programs had been codified due to a
combination of confusion over proper codification procedures and
inferior quality and format of the materials that were submitted to
OFR by other EPA program offices.

In order to obtain OFR's approval for the use of incorporation
by reference of material in its regulations, EPA and OFR
representatives met to develop the following set of quality
quidelines for submitting incorporation by reference materials as
part of the codification process.

The 40 CFR Part 55 incorporation by reference model would be
followed in developing a Part 282 for all materials to be
incorporated by reference. Incorporation by reference material must
be placed in binders, which must have a table of contents. All
pages should be numbered for easy reference.

The materials must be inspected page by page to ensure that
they are clear, complete, and legible. The copies submitted must be
of a high enough quality to produce legible photocopies. If
high-quality copies are not available in the Regional office, they
should be obtained from the State. No marred or disfigured pages
may be included, and the storage method must not obscure the text
in any way (e.g., by hole punches). Experience has shown
that it may be difficult and/or expensive to get "acceptable"
copies of their statutes and regulations as part of the official
state program approval application.

All documents should be inspected to be sure that they have
titles, dates, edition numbers, author/publisher, and
identification number (where applicable). If they do not, the
Region is responsible for obtaining copies of documents that
satisfy the criteria.

The Region should number consecutively in the lower right hand
corner all pages that are to be placed in the incorporation by
reference binder. These page numbers will supersede any page
numbers on the source documents and will be used to create a table
of contents for the binder. If possible, the title page from the
statute or regulation should also be placed in the binder to
indicate where the excerpts come from.

A table of contents listing the materials included in the
binder and their page numbers must be developed and placed at the
front of the binder so that readers can quickly find the provisions
in which they are interested. The table of contents should look
very similar to the Appendix to the Federal Register notice. Any
words, phrases, sentences, paragraphs or subsections that are
"crossed-out" in the binder materials need to be noted in both the
Appendix to the rule and the table of contents to each binder.
(Please refer to the New Hampshire binders in Appendix G of this
document for examples.)

If there are portions of statutes or regulations on a page that
are not to be incorporated by reference (e.g., an
incorporated section ends and an unrelated provision immediately
follows), it is acceptable to place them into the binder and cross
them out. This eliminates the need for cutting and pasting.
However, the Region needs to be very clear about which of the
statutory and regulatory provisions are to be incorporated by
reference and which are not.

Statutes and regulations will be placed in separate 8.5 x 11
binders. In order to avid unnecessary photocopying, it is
acceptable to include a pre-printed and bound booklet of statutes
or regulations that is not 8.5 x 11 if a press bar binder is used
to secure the document. For all binders please place a label
containing the binder title and CFR number on both the front and
spine of the binder.

The Memorandum of Agreement, Program Description, and
Demonstration of Adequate Enforcement Procedures will be referenced
in the rulemaking, but copies of these documents will not be placed
into the binders.

While OFR has not mandated that binders from all states be
identical, the Regions should keep in mind that the goal is to
produce a binder that can be easily read and photocopied, and will
withstand repeated viewings. Thus, the binder should be assembled
so that loss of pages through use is minimal.

Each statement of incorporation by reference must identify
where and how copies may be examined and obtained.

OFR will maintain a copy of the incorporation by reference
binders. EPA will also maintain a copy in the EPS OUST docket, Room
M 2616, 401 M Street, SW, Washington, DC 20460; at OUST
Headquarters (contact Jerry Parker); and in the library of the
appropriate EPA Regional office. The state also will maintain a
copy of the binders.

Codification of revisions to approved state programs will
require publication of an amendment to the CFR in the Federal
Register and submittal of a separate binder with a revision date on
the cover page, with copies deposited in all the above locations.
The Director of the Federal Register must be notified in writing
that the incorporated by reference materials are being updated.
Codification of revisions is not a process of merely adding the
changes to the old binders.

An acceptable format consistently applied to all materials
submitted for incorporation by reference reduces the OFR resources
required for review and significantly decreases the period of time
between submission and approval. In addition, a consistent format
affords maximum convenience to the public user.

Much of the work involved in assuring that all incorporation by
reference materials meet the quality requirements, particularly
that resulting from OFR rejection of inferior quality documents,
can be avoided if the Region communicates the requirements to its
states early in the state program approval and codification
process. If the states understand what is required of the Regions,
materials of an acceptable quality and format can be submitted to
the Region the first time, and reassembly of the materials will not
be necessary.